International Co-operation
Guide to obtaining evidence from the UK
Guide to obtaining evidence from the United Kingdom in cases of serious or complex fraud - some questions and answers
It is possible for overseas prosecutors and investigators, in cases of serious or complex fraud, to ask for the help of the London Serious Fraud Office to obtain information in the United Kingdom. In general terms the SFO’s powers are available to obtain documents, interview witnesses (but not under oath) and restrain assets.
1. What is serious or complex fraud?
The Fraud Act 2006 introduces several general offences of fraud which may be committed by a person who:
- makes a false representation
- fails to disclose information when he is under a legal duty to do so;
- abuses a position of trust
In each case, the Defendant's conduct must be dishonest and his intention must be to make a gain, or cause a loss or the risk of a loss to another. There are also a number of other individual fraud-type offences which require that the accused was dishonest; and that he acted, or intended to act, so as to harm the rights of others.
Whether or not a fraud is serious is a question of fact. At the Serious Fraud Office, we use as a rough guide the figure of GBP 1 million being lost, or at risk of being lost, as a result of the fraud. However, if the amount involved in your fraud is less than GBP 1 million, it is still possible that we could accept it. This is because other factors can make a fraud serious, according to our criteria - for example, widespread public concern, or the involvement of persons who hold public office.
Whether or not a fraud is complex is also a question of fact. For example, if it involves a large number of financial transactions, particularly transactions across national boundaries, then it is likely to be complex. If, on the other hand, it involves a single transaction, it is unlikely to be complex.
Note that it is not necessary to show that a fraud is both serious and complex, only that it is either serious or complex.
2. What can the Serious Fraud Office do to help?
The Serious Fraud Office has compulsory powers, under section 2 of the Criminal Justice Act 1987, which enable us to do the following:
- Require any person (including, for example, a company or bank) to produce to us any relevant documents, including confidential documents. Note that section 2 cannot be used to obtain documents to which legal professional privilege attaches. However, a lawyer can be required to give the name and address of his client.
- Require any person (including, for example, a company or bank) to answer any relevant questions, including questions about confidential matters. The position regarding legal professional privilege is the same as at (a) above.
- The powers set out under (a) and (b) above are normally exercised by serving a Notice on the person concerned, which sets a date for compliance. However, if there is good reason to do so, a section 2 Notice can require immediate compliance.
- If a person fails to comply with a Notice, if it is not practicable to serve a Notice, or, if we have reasonable grounds to believe that the service of any form of Notice would seriously prejudice your criminal investigation, we may apply to a court for a warrant to search that person's house or business premises and seize the documents. However, before granting a search warrant, a magistrate must be satisfied that we have considered all other means of obtaining the material. This means that your Request must set out the facts that have led you to conclude that a search warrant is the only way in which you will be able to recover the documents. A search warrant cannot authorise the seizure of documents covered by legal privilege.
3. Who may ask for help?
The United Kingdom can receive a request for help from an overseas criminal court or tribunal, an overseas prosecutor, or any other overseas authority which appears to have the function of making requests for help in criminal cases.
4. How do I make a request for help?
All requests for the exercise of compulsory powers must be made by a Letter of Request sent to the United Kingdom Central Authority (United Kingdom Central Authority) as follows:
The Officer in Charge
United Kingdom Central Authority
5th Floor, Fry Building
Home Office
2, Marsham Street
London SW1P 4DF
Telephone: international code + 44-0207 035 4040
Fax: international code + 44-0207 035 6985
5. At what stage in my investigation may I send a Letter of Request?
Generally speaking, the United Kingdom can act upon a Letter of Request, provided either that a criminal offence has been committed in your country, or that there are reasonable grounds for suspecting that a criminal offence has been committed in your country, and that you are investigating it. It is not necessary that any person should have been charged but a criminal investigation must have been opened officially.
6. What should the Letter of Request contain?
Our legislation does not require a Letter of Request to be in a prescribed form but it must contain all the information necessary to demonstrate that assistance is permissible under our legislation. To assist we have therefore prepared a template which you may wish to use as a guideline when preparing your Letter of Request. It is important that you understand, first that the Serious Fraud Office will only undertake investigations that meet our criteria and second, that we must exercise our compulsory powers with great care and only where we can show that we have grounds to do so. Therefore, Letters of Request must contain sufficient information for us to know that the exercise of our statutory powers on behalf of your investigation is a legitimate use of our powers. Detailed guidelines on the content of letters of request appear at:
In general terms your request must state:
- That the person making the request is competent under national law to make the request
- Who are the suspects and what are the suspected offences
- What you believe to have occurred and what the suspects are believed to have done
- What investigations you wish us to carry out and what the connection is between these investigations and the offences you are investigating; for example if we are requested to obtain bank statements from a particular account there must be sufficient information within the Letter of Request for us to understand why information from the bank statements are likely to help further the investigation by for example establishing the guilt or innocence of the suspects.
The Template Letter(s) of Request mentioned above are appended at the end of this document.
The following additional points may be helpful:
- Please describe your organisation and the position that you hold, and confirm that you are permitted under the law of your country to make requests to foreign authorities for assistance in criminal cases.
- Explain which criminal offences in your country you suspect have been committed and provide us with the text.
- When using our compulsory powers, we have to state the names of the persons or companies under investigation on any Notices that we issue and serve on witnesses or other sources of evidence. If you believe this may jeopardise your enquiries please let us know.
- We are often asked whether it is necessary to send copies of documents with the Letter of Request. Documents may be helpful in explaining the facts that you are investigating. Clearly, if you want a document to be shown to a witness, you do need to send a copy.
- It is extremely important that you tell us exactly what it is that you want us to do. Here are some examples:
- If you want us to obtain documents from a bank, we need as much information as you can give us. In the United Kingdom banks generally do not have an alphabetical register of the names of account holders and there is no central register of bank accounts. Copies of cheques or bank transfer information may assist us as you will need to provide to us the name and address of the bank, the sort code, if you know it, all details which you have about the account (including its number, e.g. its IBAN Number), and the type of documents which you want (if in doubt, it is sufficient to ask for "all documents relating to the account"). Please note that it may also be difficult to obtain material which is more than 5 years old, as Banks are only required to retain account records and information for a limited period of time.
- If a search is to take place, it is not usually necessary for a prosecutor or police officer from your country to be present. However, if you wish a representative to attend, we need to have details about this person (full name, rank, experience) in a Letter of Request or a supplemental letter. He may not physically search for material but can accompany the police and SFO staff, in order to advise as to the relevance of material found at the premises. Unfortunately, for legal reasons, a person who has diplomatic status (e.g. a member of staff of your Embassy in London) is not permitted to be present at a search.
- Compulsory interviews will be conducted in English and under the control of a member of the Serious Fraud Office. It is not usually necessary for a representative from your country to be present. However, if the interview is likely to be particularly complicated, we can authorise the presence of an English speaking prosecutor from your country who, in appropriate circumstances, may be permitted to question the person directly. We need to have details about this person (full name, qualifications, experience) either in a Letter of Request or a separate written document. Please note that because police officers may not conduct compulsory interviews within the United Kingdom, foreign police officers will not be able to conduct compulsory interviews either.
Please give us as much information as possible about persons whom you want us to find and interview, or from whom you want us to obtain documents. This includes, if you have them, full names, addresses, dates of birth, telephone numbers, and if you think it would help, a photograph.
- A person who is being interviewed is entitled to have access to legal advice and may be accompanied by his lawyer. Your Letter of Request is confidential and will not be disclosed. However, we are obliged to conduct interviews in a fair and reasonable manner. In complex cases, this generally means providing the person who is being interviewed with some indication, in advance, of the topics that he/she will be questioned about. It may also be helpful to provide him/her with copies of certain documents. These are matters that we will discuss with you.
- At the beginning of the interview, the person concerned is warned in formal language that he is obliged by law to answer the questions truthfully and that failure to do so, without reasonable excuse, may result in his/her prosecution.
- The interviews are always tape recorded on a dual tape machine. A master copy of the tape will be sealed and the unsealed copy will be used to make working copies. You will receive your own copy and if the subject of the interview asks for one, he/she will be provided with a copy free of charge at the appropriate time. If you wish, a member of this Office can swear an affidavit, producing the tape or a transcript.
- Please note that the Serious Fraud Office’s powers are intended to be used in order to gather information to assist in an investigation. We do not take evidence on oath. If you wish to obtain the sworn testimony of a witness, this can be done, but not by us. You must apply to the UKCA, by a Letter of Request and they will consider nominating a court to take the evidence for you.
- For legal reasons, you must include in your Letter of Request the following two undertakings:
“If the Secretary of State for the Home Department decides to refer this Letter of Request to the Serious Fraud Office, I undertake that:-
- No document or other information obtained will be used, other than in criminal prosecutions arising from the investigation set out in this Letter of Request, without the prior consent of the Secretary of State for the Home Department; and
- No statement made by any person to the Serious Fraud Office in compliance with their compulsory powers, will be used against that person in a prosecution, unless evidence relating to it is adduced, or a question relating to it is asked in the proceedings, by or on behalf of that person.”
The undertaking at (I) is commonly required by most countries when granting legal assistance of this sort.
Undertaking (II) is required in case you ask us to exercise our statutory powers to interview a person whom you subsequently decide to prosecute. It is required in order to comply with the European Convention on Human Rights.
Please note that we will not be able to exercise any compulsory powers on your behalf until we obtain your undertakings. It is therefore essential that we receive them as soon as possible and preferably together with your Letter of Request.
7. Can the Serious Fraud Office obtain evidence anywhere in the United Kingdom?
No, only in England, Wales and Northern Ireland. There are similar powers in Scotland, which are exercised by the Crown Office. If you need evidence in Scotland, we can put you in touch with the Crown Office. There are also similar powers in Jersey, Guernsey and the Isle of Man, and again, we can put you in touch with the appropriate authorities if necessary.
8. By what method should the Letter of Request be sent?
This is primarily a matter for the law of your country. It may be that your law permits you to despatch a Letter of Request by post or by international courier (such as DHL) direct to the United Kingdom Central Authority. On the other hand your law may require you to pass a Letter of Request through diplomatic channels. Any of these methods are acceptable to the United Kingdom Central Authority, indeed in a case of urgency, the United Kingdom Central Authority is prepared to accept a Letter of Request by fax.
9. Can requests be made in money laundering or tax/fiscal fraud cases?
Money laundering that is serious or complex will almost always involve fraud, either because the funds that are being laundered are the proceeds of fraud, or because the process of laundering will involve fraudulent acts.
As far as serious or complex fiscal fraud is concerned, the Serious Fraud Office can only help you in three situations:
- if you have already instituted criminal proceedings for the fiscal fraud; or
- if your country and the United Kingdom are signatories to a Treaty (e.g. the Special Protocol on Fiscal Matters to the European Convention on Mutual Assistance in Criminal Cases) under which they agree to assist each other in the prosecution of fiscal offences; or
- the conduct constituting the fiscal offence would constitute an offence of the same or a similar nature if it had occurred in the United Kingdom.
10. Is it necessary for the legal system of the overseas country to be able to reciprocate if there were a similar United Kingdom request?
No. The United Kingdom does not require reciprocity, although naturally we hope that our partners will assist us where possible.
11. May I contact the Serious Fraud Office for advice before sending my Letter of Request?
Yes. We encourage early contact.
We are always happy to advise on the text of a Letter of Request in advance of transmission. If your request is particularly lengthy or complicated, it may save time if you send us a copy, when you send your formal Letter to the UKCA. However, please remember that we will not be able to use any compulsory measures on your behalf until the UKCA formally refers your Letter to us.
Because responsibilities within the Serious Fraud Office change from time to time, we suggest that the best approach is to contact either by telephone, fax, E Mail or letter:
The Officer in Charge
The Mutual Legal Assistance Unit
The Serious Fraud Office
Elm House
10-16 Elm Street
London WC1X 0BJ
UNITED KINGDOM
Telephone: +44 (0)20 7239 7367 / +44 (0)20 7239 7102
Fax: + 44 (0)20 7833 5442
Email: MLA@sfo.gsi.gov.uk
Web: www.sfo.gov.uk